Advertisements

A specific statute, a badly written release and an equine liability statute sink instructors and business in horse riding accident.

Powers v. Mukpo et al., 12 Mass. L. Rep. 517; 2000 Mass. Super. LEXIS 566

This case could have been easily beaten if just one of the arguments could have been won. Rely on a Good Release not a bad statute!

This is a very confusing decision with the court first throwing out defenses, then allowing them then throwing them out again.

In Powers v. Mukpo et al., the plaintiff sued everyone involved in his accident. The parties and their relationship create a complicated case to understand the facts. The decision covers every aspect of the case from start to finish and creates a very confusing decision. I’ll start by explaining the parties and the facts of the case and then get into the legal discussion.

Parties

The Plaintiff Powers took horseback riding lessons from Windhorse Dressage Academy. Windhorse was using property and the accident took place on property known as Woodlock Farm. Windhorse was owned by Mukpo. Whitman was the instructor teaching Powers who was employed by Windhorse. Woodlock is owned by DeCicco’s.

DeCicco’s were dismissed from the suit by an earlier motion for summary judgment.

Facts

The plaintiff, a novice rider, was hurt when the horse he was riding reared and fell over on him. This had occurred once before and Mukpo knew of that incident. Supposedly this had something to do with arthritis the horse had.

Massachusetts has a statute ALM GL ch. 128, § 2B Operation of Riding Schools and of Certain Stables Licensed and Regulated. That requires all riding schools and instructors to be licensed. Whitman, Mukpo and Windhorse were not licensed at the time of the accident.

Summary of the legal arguments.

Release

The first issue the court addressed was the release. The release only referenced “Woodlock Farm, its instructors, and agents.” Based on this language, the court held that only Mukpo could be protected by the release. Mukpo was an agent of Woodlock in this case. Whitman and Windhorse were not covered in the release.

Under Massachusetts law, a release is void if the defendant fails to follow the statute affected by the release. Basically this is similar to a negligence per se argument. If you don’t follow the law, you can’t avail yourself of the defenses that may be available. Whitman was excluded from the benefit of the release, if she had been protected by the release. (Why this argument was necessary I’ve not determined. However it does lead to good educational information.)

Al although Whitman was not protected by the release because she was not a named party covered in the release, she was also not protected by the release because she had violated a state statute affecting her profession.

In other words, since Whitman’s professional judgment was involved, and because regulations are generally tailored to ensure that decisions such as this are made only by qualified instructors, Whitman’s violation of her statutory duty precludes enforcement of the release to shield her from liability.

Mukpo, Whitman and Windhorse did not have a release. They relied upon the release created by the owner of the stable and land, Woodlock. Because the language of the release was not broad enough and because Windhorse was operating on the land under a contract Windhorse was not an agent of Woodlock. Mukpo and Whitman where employees of Windhorse so thus they could not be agents or employees of Woodlock also. So now, under a different argument, none of the defendants in this motion could be protected by the release.

The court then stated, Whitman could be considered an agent of Woodlock, however because she was not licensed, she could not be protected by the release.

Equine Statute

The court finally looked at whether the Massachusetts Equine Statute provided protection to any of the defendants. G.L.c. 128, § 2D(b) Equine Activities; Sponsors; Liability; Required Warnings; Definitions. The court stated the statute protected equine professional from suits over injuries resulting from the inherent risks of equine activity.

However, the statute also has a section that excludes protection if the equine professional did not determine if the ability of the student was sufficient to ride the horse involved. The statute required the instructors to determine if the student’s skills matched the horse. Here the court found the defendants had not done their diligence, had not met the statute. The relevant statute section states:

Nothing in subsection (b) shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person:
…..
(ii) provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity, and determine the ability of the participant to safely manage the particular equine based on the participant’s representations of his ability;

The plaintiff was a beginning or novice rider and the horse had a known propensity to rear. The earlier time the horse had reared an experienced rider had been able to jump off the horse and avoid being crushed by the horse when it fell over backwards. Here the rider was a beginner without the necessary experience to know what to do or how to escape from the situation.

Because the defendants had not met the requirements of the Massachusetts Equine Liability Act they could not be protected by the act.

The court held that the defendants’ motion for summary judgment was denied.

So Now What?

This case is very confusing to read, however it does provide some insight, most of which I’ve covered several times in the past.

1. Equine liability Acts have very limited value. No matter how they are written the acts of the horse can always be attributed to the acts of a human and a lawsuit can be made by an injured plaintiff. In this case, the defendants failed to meet the requirements of the act.
I’ve said it several times before. Equine Liability Acts are 100% effective; no horse had been sued since they were enacted. However suits against horse owners and trainers, stables and riding schools are still going up.
2. No matter who you are, make sure you are covered by a release. Make sure when you go to work for someone that very specifically in the release you or your class of people are protected. Make sure that if you are part of a class of people that your class is directly named in the release also.
By class I mean if you are an employee; make sure the release says your employers name and all employees. If you are an independent contractor the release must name the person who has hired you and contractors and/or agents.
3. Have your release written by a professional. This release might have been, however it was written for people who had very little to do the lawsuit and could not be used to protect them. The release protected the people named in the release.
Hire an attorney who understands your operation the risks of your operation and what needs to be covered and protected. If Mukpo or Windhorse had hired a knowledgeable attorney to review this release she would have known to be licensed and would have a release that protects her and her employees.

4. Never ever, never, ever, never ever violate a statute. Never violate a statute that was designed to cover you or protect the people you work with.

In Short.

A. Buy a good insurance policy that will protect you and your employees and any agents or contractors you hire.
B. Make sure you meet or surpass any state laws.
C. Have a professional release written to protect you and your employees.
D. Make sure you understand the laws of the state you operate in so that understand what you can and cannot do.
E. Never rely on Equine Statutes.

What do you think? Leave a comment.

Copyright 2011 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com
Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Blog: www.recreation-law.com
Keywords: #recreationlaw, #@recreationlaw, #cycling.law #fitness.law, #ski.law, #outside.law, #recreation.law, #recreation-law.com, #outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #travel law, #Jim Moss, #James H. Moss, #attorney at law, #tourism, #adventure tourism, #rec-law, #rec-law blog, #recreation law, #recreation law blog, #risk management, #Human Powered, #human powered recreation,# cycling law, #bicycling law, #fitness law, #recreation-law.com, #backpacking, #hiking, #Mountaineering, #ice climbing, #rock climbing, #ropes course, #challenge course, #summer camp, #camps, #youth camps, #skiing, #ski areas, #negligence, #equine, #stable, #horse, #Massachusetts, #Statute, #rear,

Advertisements